This blog comments on the second half of Justice McWatt’s judgment in the matter of L(AG) v. D(KB). The first half of Justice McWatt’s judgment dealt with custody and access issues, whereas the second half deals with whether the respondent mother in this case was in fact in contempt of five court orders made by the Ontario Superior Court of Justice.
In the first judgment, the Court actually concluded that the wife had alienated her children from their father, and thus, custody of the children changed hands from the mother to the father. Other orders were also made. For a complete explanation of the case and details of the ruling, please refer to the blog on this website entitled “JUDGMENT WAKEUP CALL – Parental Alienation:L.(A.G.) v. D.(K.B.). The Repercussions of Using Children As Weapons Against Ex-Spouses”.
The purpose of the follow-up judgement was to decide whether the Respondent was in fact in contempt of five court Orders. Past Orders were made by various judges in this case to the effect of implementing a parenting plan, increasing the father’s access to the children, granting the father telephone access to the children on specified days, and mandating that the mother attend counselling. During the relevant period covered by the Orders, it was concluded by the Court that none of them were complied with by the mother. The mother allowed some of the visits contemplated by the various orders, but only did so if she was present to accompany the children and their father. At times the mother refused to comply with the Orders outright. Further, the mother raised no evidence at trial to prove that she had attended for counselling ordered by the Court. Although the father was granted telephone access by one judge, the mother rarely complied. The mother would routinely refuse to answer her telephone, would take her telephone off the hook, and would decline to put her children on the telephone insisting that the children did not want to speak to their father.
The judge then went on to examine the law surrounding contempt of Court Orders. Since civil contempt is a quasi-criminal matter, allegations of same must be proved beyond a reasonable doubt, and the burden of proof rests on the party alleging the contempt. The standard of intention is knowledge of the reasons for the Order and contravention of the Order. Direct intention to disobey the Order is not required, as wilful disregard is sufficient. Evidence of contempt in family law matters should be clear and unequivocal. Further, the Court points out that under Rule 60.11(5) of the Rules of Civil Procedure, there are broad penalty powers given to the Court, including, but not limited to, imprisonment, fines, and costs. The Court goes on to look at and summarize various cases decided in Ontario relevant to the case at bar. After having reviewed the legislation and jurisprudence surrounding the law of contempt, the Court goes on to apply the facts of the case to same. The Court recognizes that the mother came to the Court time and time again, and consented to the Orders in question. And time and time again, once she left the Court building, she ignored the Orders believing that she could escape scrutiny. The mother’s defence that it was the children who wished not to see their father was contradicted by the children themselves during their exposure to the Office of the Children’s Lawyer. The children could not explain to the OCL worker why they did not want to be with their father. One of the children even advised the OCL that she loved both her parents and wanted to see both of them.
As a result of the foregoing, the judge concluded that the mother’s evidence left her with no reasonable doubt, nor any doubt, that she wilfully committed contempt in relation to all five court Orders in question. According to the Court, “the evidence of her contempt is overwhelming”. The judge was “absolutely convinced that she intended all of the breaches alleged for her own interests”. The father asked the Court to order that the mother pay a penalty to him for the acts of contempt. The Court found that as a result of the evidence accumulated and presented at trial about the mother’s behaviour, the father had made too many fruitless trips to the Court, and thus, the father’s request for payment was a reasonable one. The mother was ordered to pay to the father as a penalty for her contempts approximately $20,000.00, and an additional $15,000.00 in costs for a specified time period.